Rogers-Carroll v. Marlboro Central School District

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

KATHY L. ROGERS-CARROLL,

Plaintiff, 1:24-cv-322

(ECC/DJS)

v.

MARLBORO CENTRAL SCHOOL DISTRICT;

MICHAEL BAKATSIAS, SUPT.

TECHNOLOGY-PERSONNEL; MICHAEL

RYDELL, SUPERINTENDENT OF SCHOOLS,

Defendants.

Kathy L. Rogers-Carroll, pro se Plaintiff

Chelsea Weisbord, Esq., for Defendants

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

On March 6, 2024, pro se Plaintiff Kathy Rogers-Carroll filed this action alleging that

Defendants Marlboro Central School District (the District), Michael Bakatsias, and Michael Rydell

violated the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., as amended (ADA), and

that Defendant Bakatsias slandered her, in violation of state defamation law. Presently before the

Court is Defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Dkt. No. 13. The motion is fully briefed. Dkt. Nos. 13, 18, 19. For the following

reasons, the motion to dismiss is granted in part and denied in part.

I. FACTS1

Plaintiff has been employed by the District as a special education teacher since September

3, 2002 and by the New Paltz Central School District (New Paltz) as a track coach since March 3,

2024. Complaint (Compl.) ¶ 1, Dkt. No. 1.2

On December 27, 2022, Plaintiff had back surgery for a herniated disc, and she experienced

complications during her recovery. Compl. ¶¶ 2, 4. District employees receive six sick days, and

a committee managed by the District (the committee) could give employees additional days from

a sick bank (sick bank days). Id. ¶¶ 4, 7. After Plaintiff’s surgery, she submitted three requests

for sick bank days with supporting medical documentation. Id. ¶¶ 3-5. The Complaint focuses on

her last request submitted on February 27, 2023 (the leave request). “As per her doctor’s

recommendation and latest note, Plaintiff was scheduled to return to work on March 27, 2023.”

Id. ¶ 5.

While recovering from surgery, Plaintiff coached for New Paltz in a “limited capacity.”

Compl. ¶ 13. New Paltz allowed her to work for 1-2 hours per day, alternate between sitting and

standing, avoid areas where collisions were more likely to occur, and receive help from two

volunteer coaches and a co-coach. Id.

On March 10, 2023, the committee denied Plaintiff’s leave request, explaining that Plaintiff

had not met the requirement that an employee “suffered a disabling illness or accident.” Compl.

1 These facts are drawn from the Complaint. The Court assumes the truth of, and draws reasonable

inferences from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67,

74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

2 Citations to the factual allegations in the addendum to the Complaint are to paragraph numbers

(¶), while citations to the form Complaint are to section symbols (§).

¶ 7; Dkt. No. 13-3.3 The denial relied on the fact that Plaintiff was working for New Paltz, but not

reporting to work at the District. Compl. ¶ 7; Dkt. No. 13-3. Defendant Michael Bakatsias,

Assistant Superintendent of Personnel for the District, called Plaintiff to tell her that she would not

be paid if she did not return to work. Id. ¶¶ 7, 8. He also told Plaintiff that she was “lying,”

“fraudulently requesting sick bank time,” and that her request was denied “because she was in fact

not disabled.” Id. According to Plaintiff, “[t]his inaccurate and slanderous portrayal of

[Plaintiff’s] very serious condition . . . misinformed the sick bank committee and biased their

decision.” Id. ¶ 7. Defendant Bakatsias and the principal of Marlboro High School “consistently

conveyed as part of an informal ‘policy’ that the District would not allow part-time work, return

to work with restrictions, or the use of assistive devices.” Id. ¶ 11. Defendant Bakatsias also

“repeatedly insisted that Plaintiff’s return to work be ‘full time with no restrictions.’” Id. ¶ 14

(internal quotation in complaint).

After denying Plaintiff’s leave request, the District docked her pay approximately $5,957,

the amount of pay for the nine days between Plaintiff’s February 27th request and March 10th.4

Compl. ¶ 7. After Plaintiff’s pay was docked, she “pleaded with her doctor to write her a note to

return to work, which he reluctantly agreed to do.” Id. ¶ 9. “This note followed Mr. Bakatsias’

refusal to accept the first letter from Plaintiff’s neurosurgeon, which stated clearly the dangers

Plaintiff faced if she returned, and the directive that she could not work in the school building

3 “[D]ocuments that are attached to the complaint or incorporated in it by reference are deemed

part of the pleading and may be considered” for purposes of a motion to dismiss. Beauvoir v.

Israel, 794 F.3d 244, 248 n.4 (2d Cir. 2015) (citation omitted). The Plaintiff refers to the letter

from the committee throughout the Complaint, and it may therefore be considered for purposes of

this motion to dismiss.

4 Plaintiff estimates that the resulting loss is $30,000 over the course of her retirement because this

will lower the final three years of pay used to calculate her retirement. Compl. ¶ 17.

beyond 1-2 hours a day . . . .” Id. ¶ 9. “As part of Plaintiff’s recovery, Plaintiff’s doctor permitted

her to . . . work as tolerated for 1-2 hours at a time, with the ability to alternate sitting or standing.”

Id. ¶ 10.

Plaintiff returned to work on March 12th full-time with no restrictions or assistive devices,

and she “experienced severe additional pain and suffering as well as great risk to her health and

safety.” Compl. ¶¶ 14-15.

On April 20, 2023, Plaintiff’s brother-in-law died unexpectedly, and Plaintiff left work

early. Compl. ¶ 19. The next day, the principal asked Plaintiff, “Where did you go yesterday;

someone reported that you didn’t go home?” Id. On April 24, 2023, the District denied Plaintiff’s

request for a bereavement day, and Defendant Rydell told her, “That’s what personal days are for

. . . .” Id. ¶ 20. The District’s bereavement policy gave Defendant Rydell the discretion to “allow

bereavement leave for persons other than those enumerated in this section.” Id. ¶ 19.

For years, Plaintiff included her coaching and summer employment titles on her District

email signature block. Compl. ¶ 22. On May 24, 2023, Defendant Rydell directed Plaintiff to

remove “‘what appears to be external employment titles’” from her email signature block at her

“‘earliest convenience.’” Id. This email was sent “to Plaintiff personally, rather than to all teachers

collectively, suggesting it was a targeted reprisal.” Id.

On May 26, 2023, Plaintiff stopped working, and on June 6th, she had emergency bi-level

anterior cervical discectomy and fusion neck surgery. Id. ¶ 15.

On August 17, 2023, Plaintiff filed a complaint with the New York State Division of

Human Rights (SDHR) alleging disability discrimination. Compl. ¶ 18; Dkt. No. 19-2.

On October 10, 2023, Plaintiff attended a “virtual informal hearing” at 10:00 am that took

longer than the 30 minutes she expected. Compl. ¶ 21. Although the hearing was less than two

hours, and 40 minutes of that time was Plaintiff’s lunch break, the District docked Plaintiff half of

a personal day (3.5 hours) because she did not follow “the proper procedure to request leave for

personal matters.” Id. In addition, the District issued a written admonishment that was placed in

her personnel file. Id.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

“a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Although a complaint need not contain

detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation

of the elements of the cause of action, and the factual allegations ‘must be enough to raise a right

to relief above the speculative level.’” Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017

WL 4250513, at *2 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must

accept as true all well-pleaded factual allegations in the complaint and draw all reasonable

inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014)

(citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions.” Iqbal, 556 U.S. at 678.

“[W]here, as here, a plaintiff is proceeding pro se, the complaint must be considered under

a more lenient standard than that accorded ‘formal pleadings drafted by lawyers.’” Harrison v.

New York, 95 F. Supp. 3d 293, 313 (E.D.N.Y. 2015) (citation omitted). The Complaint must also

be construed liberally “to raise the strongest arguments that it suggests.” Costabile v. N.Y.C.

Health & Hosps. Corp., 951 F.3d 77, 80 (2d Cir. 2020) (citation omitted). “Nonetheless, a pro se

complaint must state a plausible claim for relief.” Darby v. Greenman, 14 F.4th 124, 128 (2d Cir.

2021) (quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)).

III. DISCUSSION

Liberally construed, Plaintiff’s Complaint alleges ADA failure-to-accommodate and

retaliation claims against all of the Defendants as well as a slander claim against Defendant

Bakatsias.

A. ADA Claims

The ADA prohibits discrimination “against a qualified individual on the basis of disability

in regard to . . . [the] discharge of employees,” as well as “other terms, conditions, and privileges

of employment.” 42 U.S.C. § 12112(a). A prima facie discrimination claim requires the plaintiff

to show that: “(1) the defendant is covered by the ADA; (2) [the] plaintiff suffers from or is

regarded as suffering from a disability within the meaning of the ADA; (3) [the] plaintiff was

qualified to perform the essential functions of the job, with or without reasonable accommodation;

and (4) [the] plaintiff suffered an adverse employment action because of [her] disability or

perceived disability.” Luka v. Bard Coll., 263 F. Supp. 3d 478, 486 (S.D.N.Y. 2017) (quoting

Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). A “plaintiff alleging disability

discrimination ‘is not required to plead a prima facie case . . . to defeat a motion to dismiss,’” and

she “‘need only give plausible support to a minimal inference of discriminatory motivation at the

pleading stage.’” Id. at 486–87 (quoting Dooley v. JetBlue Airways Corp., 636 Fed. App’x 16, 21

(2d Cir. 2015) (summary order)). See also Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25

(2d Cir. 2014) (summary order) (“To state a claim for discrimination under the ADA, a plaintiff

must allege facts which plausibly suggest, inter alia, that she suffered [an] adverse employment

action because of [her] disability.”).To survive a motion to dismiss, a plaintiff “need only allege

facts to support [the plaintiff’s] prima facie case.” Morey v. Windsong Radiology Grp., P.C., 794

F. App’x 30, 32 (2d Cir. 2019). In addition, “a plaintiff alleging disability discrimination ‘is not

required to plead a prima facie case . . . to defeat a motion to dismiss,’ and ‘need only give plausible

support to a minimal inference of discriminatory motivation at the pleading stage.’” Id. at 486–87

(quoting Dooley, 636 Fed. App’x at 21).

1. Claims Against Individuals

As Plaintiff recognizes, individuals are not liable under the ADA. Pl. Mem. at 8, Dkt. No.

18; see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (Title II

of the ADA does not “provide[] for individual capacity suits against state officials”); Rubeor v.

Town of Wright, 191 F. Supp. 3d 198, 208 (N.D.N.Y. 2016) (“Claims against individual defendants

in their official capacities are really just claims against the municipality and, thus, are redundant

when the municipality is also named as a defendant.”) (quotations omitted). The ADA claims

against Defendants Bakatsias and Rydell are therefore dismissed.

2. Failure to Accommodate

Defendants argue that Plaintiff’s failure to accommodate claim should be dismissed

because (1) Plaintiff’s alleged impairment is not a disability under the ADA given that temporary

impairments such as recovery from surgery are not disabilities, and Plaintiff has not alleged that

her herniated disc affected any major life activities before her surgery and recovery, Def. Mem. at

25-27, Dkt. 13-4; and (2) the District did not have notice of Plaintiff’s disability, id. at 27-28.

Plaintiff responds that she was unable to perform several major life activities during her recovery,

temporary impairment can qualify as a disability under the ADA, and the District had notice of her

disability. See Pl. Mem. at 19-24.

A prima facie failure-to-accommodate claim requires the plaintiff to show: “(1) plaintiff is

a person with a disability under the meaning of the ADA; (2) an employer covered by the statute

had notice of [plaintiff’s] disability; (3) with reasonable accommodation, plaintiff could perform

the essential functions of the job at issue; and (4) the employer has refused to make such

accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)

(quotation omitted). “The ADA envisions an interactive process by which employers and

employees work together to assess whether an employee’s disability can be reasonably

accommodated,” but “the ADA imposes liability for, inter alia, discriminatory refusal to undertake

a feasible accommodation, not mere refusal to explore possible accommodations where, in the end,

no accommodation was possible.” McBride, 583 F.3d at 99, 100 (cleaned up).

a. Physical or Mental Impairment Substantially Limiting

One or More Major Life Activities

The ADA defines disability as “a physical or mental impairment that substantially limits

one or more major life activities,” “a record of such impairment,” or “being regarded as having

such an impairment.” 42 U.S.C. § 12102(1). Defendants argue that Plaintiff has not established

that she suffers from a physical or mental impairment that substantially limits one or more of her

major life activities.5 Def. Mem. at 25-26. Plaintiff responds that that she pled specific major life

activities affected by her herniated disc and back surgery. Pl. Mem. at 20-21.

“To establish a disability, a plaintiff must: (1) ‘show that she suffers from a physical or

mental impairment’; (2) ‘identify the activity claimed to be impaired and establish that it

constitutes a major life activity’; and (3) ‘show that her impairment substantially limits the major

life activity previously identified.’” Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154,

5 Defendants argue that Plaintiff has also not alleged sufficiently that she was regarded as disabled,

Def. Mem. at 16-17, but Plaintiff does not appear to rely on that provision.

163 (S.D.N.Y. 2020) (quoting Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 147 (2d

Cir. 2002)). A physical impairment is “[a]ny physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more body systems.” 6 29 C.F.R. § 1630.2(h)(1).

Major life activities are non-exclusively defined to include “caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working,” in addition to “the

operation of a major bodily function.” 42 U.S.C. § 12102(2).

To qualify as a disability, an impairment must “substantially limit[] the ability of an

individual to perform a major life activity as compared to most people in the general population”;

but “need not prevent, or significantly or severely restrict, the individual from performing a major

life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). “The

term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and “is not

meant to be a demanding standard.” Id. § 1630.2(j)(1)(i). “An impairment that is episodic or in

remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C.

§ 12102(4)(D).

Plaintiff alleges that her disability is “[d]isc herniation . . . radiating nerve pain through

right leg, and severe back pain due to nerve impingement” and that the “disabling condition”

required surgery resulting in complications including “reherniation of the disc and caused foot

drop, continued pain and risk of permanent injury.” Compl. § 4. She also alleges that as part of

her recovery, her “doctor permitted her to work part time (work as tolerated for 1-2 hours at a time)

6 The EEOC regulations implementing the ADA and its subsequent amendments, 29 C.F.R. §

1630.1, “are not binding,” but “courts in the Second Circuit afford them significant deference.”

Norman, 492 F. Supp. 3d at 163 (citing Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir.

1997)).

with the ability to alternate sitting or standing.” Compl. ¶ 10. Defendants do not argue that

Plaintiff failed to sufficiently allege a physical impairment, Def. Mem. at 23-24, and Plaintiff’s

allegations are sufficient to allege a physical impairment.

However, Defendants argue that “Plaintiff does not plausibly allege limitations of her

ability to perform any major life activities (substantial or otherwise) outside of the short duration

of time in which she was recovering from her back surgery,” and “[t]o the extent Plaintiff was

substantially limited from performing any major life activities” during her recovery from surgery,

“that is the type of temporary, non-chronic impairment of short duration that does not qualify as a

disability under the ADA.” Def. Mem. at 26.

Plaintiff responds that she alleged that the disc herniation substantially limited the major

life activities of “walking, standing, and working,” Pl. Mem. at 20 (citing Compl. ¶ 6), and “[a]s a

result of complications arising from her back surgery for a herniated disc, she was no longer able

“stand and walk for long periods, circulate throughout classrooms and hallways (sometimes

packed with students), nor spend long periods of time working on a computer, and needed an

assistive device,” id.

“[F]or a disability to substantially limit the major life activity of working, the complaint

must plausibly allege that the disability affected ‘the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average person having comparable

training, skills and abilities.’” Johnson v. N.Y. State Police, 659 F. Supp. 3d 237, 259 (N.D.N.Y.

2023) (quoting Anderson v. Nat’l Grid, PLC, 93 F. Supp. 3d 120, 137–38 (E.D.N.Y. 2015)).

“Under the expanded definition of ‘disability’ under the [ADA Amendments Act of 2008],

which now covers impairments ‘lasting or expected to last less than six months,’ 28 C.F.R. §

35.108(d)(ix), a short-term injury can qualify as an actionable disability under the ADA.”

Hamilton v. Westchester Cnty., 3 F.4th 86, 93 (2d Cir. 2021). See also Patterson v. Emblem Health

Inc., No. 22-cv-2177, 2023 WL 5671531, at *5 (S.D.N.Y. Sept. 1, 2023) (“[an] actual disability

claim under the ADA cannot fail solely because [a plaintiff] did not allege a permanent or chronic

disability”). “In other words, a plaintiff’s actual disability claim under the ADA does not fail

solely because he failed to ‘state that his [disability] will be permanent or chronic . . . [or] indicate

the duration or long-term impact of his impairment such that the Court may infer that his injury

was not temporary.” Hamilton, 3 F.4th at 93.

Here, Plaintiff alleges that her job required “that she stand and walk for long periods,

circulate throughout classrooms and hallways (sometimes packed with students), as well as

repeatedly lean over students’ desk as they work” and “spend[] long periods of time working on a

computer.” Compl. ¶ 6. She also alleges that these “requirements” were not “conducive to a safe

and effective recovery from back surgery,” and that she was “at risk of permanent disability if she

was knocked in to or tripped and she was particularly vulnerable due to foot drop cause by lumbar

disc herniation.” Id. Although “[c]ourts have yet to establish the extent to which a plaintiff must

allege . . . [her] claim that an impairment substantially limits a major life activity,” Laface v. E.

Suffolk BOCES, No. 18-cv-1314, 2020 WL 2489774, at *11 (E.D.N.Y. May 14, 2020), these

references are sufficient to survive dismissal at the pleading stage.

In addition, contrary to Defendants’ argument, Plaintiff’s claims may not be dismissed

solely because her doctor anticipated that her recovery would take three months. The Second

Circuit has made clear that temporary non-chronic conditions, even ones shorter than six months,

can be disabilities. Compl. ¶ 5; see Hamilton, 3 F.4th at 93 (“Hamilton’s claim could not be

dismissed as a matter of law simply because the injury causing these limitations was temporary.”).

b. Notice to Employer

Defendants further argue that Plaintiff has not alleged that the District had knowledge of a

disability because her leave requests with doctor’s notes regarding her recovery demonstrate that

the District knew “that she was injured, not disabled.” Def. Mem. at 28. Plaintiff responds that

the Complaint sufficiently alleges that she provided notice of her disability and necessary

accommodations because it alleges that she “provided supporting medical documentation with

each extension request for her leave;” her doctor permitted her to “work as tolerated for 1-2 hours

at a time), with the ability to alternate sitting or standing,” and she provided a letter from her

neurosurgeon stating the “dangers” she faced at the school and directing that “she could not work

in the school building beyond 1-2 hours a day.” Pl. Mem. at 23 (citing Compl. ¶¶ 2-5, 9, 10).

As explained above, for purposes of this motion Plaintiff has sufficiently alleged a

disability under the ADA. Drawing all reasonable inferences from the facts pled by Plaintiff,

Plaintiff has sufficiently alleged that the leave requests and doctor’s notes submitted by Plaintiff—

particularly the letter from Plaintiff’s neurosurgeon explaining that she could not work at the

school more than one to two hours each day—provided the District notice of the alleged disability.

Compl. ¶ 3-5, 9.

3. Retaliation

Defendants argue that the retaliation claim should be dismissed because the allegedly

adverse actions (1) occurred before Plaintiff filed her SDHR complaint, (2) are “the kind of trivial

harm that” is not an adverse action; and/or (3) were the result of the application of neutral

attendance policies. See Def. Mem. at 28-31. Plaintiff responds that the pre-SDHR complaint

actions retaliated against her protected activity of seeking accommodations. She also asserts that

the question of whether the application of the attendance policies was a legitimate non-

discriminatory reason is a factual question that cannot be resolved at the pleading stage.7 See Pl.

Mem. at 25-26.

To state a prima facie case of retaliation, Plaintiff must allege that (1) she “engaged in an

activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took

adverse employment action against [her]; and (4) a causal connection exists between the alleged

adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.

2002).

a. Adverse Employment Action

“To qualify as an adverse employment action, the employer’s action toward the plaintiff

must be ‘materially adverse’ with respect to ‘the terms and conditions of employment.’” Davis v.

N.Y.C Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (quoting Sanders v. N.Y.C. Human Res.

Admin., 361 F.3d 749, 755 (2d Cir. 2004)). “An adverse employment action ‘must be more

disruptive than a mere inconvenience or an alteration of job responsibilities and might be indicated

by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly diminished material responsibilities, or

other indices . . . unique to a particular situation.’” Fox v. Costco Wholesale Corp., 918 F.3d 65,

71–72 (2d Cir. 2019) (quoting Patrolmen’s Benevolent Ass’n of City of N.Y. v. City of New York,

310 F.3d 43, 51 (2d Cir. 2002)). “Petty slights, minor annoyances, and simple lack of good

manners” are insufficiently material to constitute adverse actions for a retaliation claim.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

7 Plaintiff concedes that she cannot assert an ADA retaliation claim based solely on the District’s

failure to grant her accommodation requests. Pl. Mem. at 26.

Plaintiff alleges three adverse actions: (1) the April 24, 2023 denial of a bereavement day

for her brother-in-law’s funeral, Compl. ¶ 2; (2) the May 24, 2023 email from Defendant Rydell

directing Plaintiff to change her email signature block, id. ¶ 22; and (3) the October 10, 2023

docking of one-half of a personal day and placement of a disciplinary letter in her personnel file

for violating the District’s attendance policy, id. ¶ 21.

Defendants argue that the denial of bereavement leave was not an adverse action because

Plaintiff was instructed to use a personal day instead of a bereavement day. Def. Mem. at 29.

Defendants also take the position that the email regarding the signature block was a “trivial harm”

that does not rise to the level of an adverse action. Def. Mem. at 29-30. Plaintiff contends that

Defendants took these actions in response to her request to extend her leave and her request for a

reasonable accommodation. Pl. Mem. at 25.

Regarding the signature block email, Plaintiff does not address that action in her response,

and she has not sufficiently alleged that a request to change the signature block on her email

affected the terms of her employment or was a threat of disciplinary action. In addition, that email

is not material enough to be an adverse action. White, 548 U.S. at 86. Accordingly, the

Defendants’ motion to dismiss is granted as to Plaintiff’s ADA retaliation claim based on the May

24, 2023 email from Defendant Rydell.

However, the Court finds that Plaintiff has sufficiently alleged adverse action as to (1) the

bereavement leave denial and (2) the docking of one-half day of pay and the filing of a disciplinary

letter, for purposes of surviving Defendants’ motion to dismiss.

b. Causation

Defendants assert that “the application of neutral attendance policies is by definition a

legitimate, nondiscriminatory reason for a particular action.” Def. Mem. at 30. Plaintiff responds

that is a question of fact that should not be resolved as part of this motion to dismiss. Pl. Mem. at

26.

“[T]he ADA requires a plaintiff alleging a claim of employment discrimination to prove

that discrimination was the but-for cause of any adverse employment action.” Natofsky v. City of

New York, 921 F.3d 337, 348 (2d Cir. 2019) (citations omitted). The burden for a plaintiff claiming

discrimination is relatively low for a motion to dismiss. See Rodriguez, 2014 WL 6807834, at *6,

(“To survive a motion to dismiss, a plaintiff is simply required to set forth factual circumstances

from which a discriminatory motivation can be inferred.”) (cleaned up). “As other courts within

the Second Circuit have held, temporal proximity is sufficient to raise an inference of

discrimination to plausibly state a claim of employment discrimination.” Shlafer v. Wackenhut

Corp., 837 F. Supp. 2d 20, 27 (D. Conn. 2011) (citations omitted).

Here, Plaintiff has sufficiently alleged causation for both of the alleged adverse

employment actions involving her leave. The bereavement leave denial occurred less than two

months after her leave request was denied. The docking of pay and disciplinary letter also occurred

less than two months after Plaintiff filed her SDHR complaint. Although Defendants may be able

to establish those actions were the result of the application of a neutral attendance policy, that is a

question of fact that cannot be addressed at this stage of the litigation. 8

B. Slander

Defendants argue that the slander claim should be dismissed because Plaintiff did not

comply with New York statutes requiring notice of claims. Def. Mem. at 18-20. Plaintiff argues

8 Plaintiff acknowledges that the Superintendent had the discretion to grant her bereavement

leave request, Compl. ¶ 20, but the application of the bereavement leave policy is a question of

fact that cannot be resolved at this stage.

that those statutes do not apply, or in the alternative, that her SDHR complaint satisfies the

requirements. Pl. Mem. at 15-16.

New York law requires that a plaintiff filing damages claims against a school official or

district under tort law provide notice of their claims before filing a complaint, and plead

compliance with those requirements in any complaint. N.Y. Educ. Law § 3813; Naples v.

Stefanelli, 972 F. Supp. 2d 373, 390 (E.D.N.Y. 2013). The deadline for the notice is three months

after the conduct supporting the claim. N.Y. Educ. Law § 3813. These requirements apply to state

court claims filed in federal court. Vincenzo v. Wallkill Cent. Sch. Dist., No. 121-cv-308 (GTS),

2022 WL 913094 at *12 (N.D.N.Y. Mar. 29, 2022) (collecting cases).

Plaintiff did not allege compliance with these requirements in the Complaint, but she

argues that her SDHR complaint provided the required notice. Dkt. No. 19-2. As an initial matter,

the SDHR complaint does not mention slander. Even if it did, the SDHR complaint was filed on

August 17, 2023, more than three months after the March 10, 2023 denial of her leave request that

is related to her slander claim.

Plaintiff also argues that Defendant Bakatsias was not a “school official” covered by §

3813(1), but even if she were correct, Defendant Bakatsias is a “school employee” who was

entitled to 90-day notice, N.Y. Educ. Law § 3813(2); Gen. Mun. Law § 50-e, and the SDHR

complaint was filed more than 90 days after the alleged conduct. Accordingly, Plaintiff’s slander

claim against Defendant Bakatsias is dismissed.

IV. Leave to Amend

Plaintiff “respectfully requests leave to file an amended complaint to address any

deficiencies identified by the Court.” Pl. Mem. at 2. Ordinarily, a court “should not dismiss a pro

se complaint without granting leave to amend at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Jeanty v. Sciortino, 669 F. Supp. 3d 96,

118 (N.D.N.Y. 2023) (internal quotations omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795–96 (2d Cir. 1999)); see also Fed. R. Riv. P. 15(a)(2) (“The court should freely give

leave when justice so requires.”). But leave to amend is properly denied when the problem with a

claim is substantive, and better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000).

Here, as Plaintiff recognizes, she cannot bring ADA claims against the Individual

Defendants in their individual or official capacities, and amendment of those claims would be

futile. Pl. Mem. at 8. Plaintiff is therefore not granted leave to amend those claims. Regarding

the ADA retaliation claim relying on the email directing Plaintiff to change her signature block,

Plaintiff’s request for leave to amend is granted to the extent Plaintiff is not attempting to revive

the dismissed ADA claims against the Individual Defendants. Furthermore, Plaintiff’s request for

leave to amend her slander claim is granted only to the extent she can plead compliance with the

state notice requirements.

If Plaintiff seeks to amend, Plaintiff must file an amended complaint within twenty-one

(21) days of this Order. Plaintiff is reminded that the amended complaint will replace the existing

complaint and must be a wholly integrated and complete pleading that does not rely upon or

incorporate by reference any pleading or document previously filed with the Court. See Shields v.

Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended

complaint ordinarily supersedes the original, and renders it of no legal effect.” (quotation marks

and citations omitted)). Any amended complaint should contain all factual allegations relevant to

Plaintiff’s claims.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants’ motion to dismiss under Rule 12(b)(6), Dkt. No. 13, is

GRANTED in part and DENIED in part; and it is further

ORDERED that Defendants’ motion is GRANTED to the extent that the ADA

claims against Defendants Rydell and Bakatsias in their official and individual

capacities are DISMISSED with prejudice; and it is further

ORDERED that Defendants’ motion is GRANTED to the extent that the slander claim

against Defendant Bakatsias is DISMISSED without prejudice; and it is further

ORDERED that Defendants’ motion is GRANTED to the extent that the ADA retaliation

claim premised on the May 24, 2023 email from Defendant Rydell directing Plaintiff to change

her signature block is DISMISSED without prejudice; and it is further

ORDERED that Defendants’ motion to dismiss is in all other respects DENIED.

IT IS SO ORDERED.

Dated: July 8, 2025

bien

Elizabeth C. Coombe

U.S. District Judge

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